Amadei v. ETS Services, LLC et al

Filing 18

ORDER signed by Senior Judge Lawrence K. Karlton on 9/3/2009 ORDERING Counsel for pltf is hereby sanctioned and ORDERED to pay $150 to the clerk by 9/28/2009; This sanction is to be paid personally by counsel, out of personal funds, and is not a nd will not be billed, directly or indirectly, to the client or in any way made the responsibility of the client as attorneys' fees or costs; Counsel shall file an affidavit accompanying the payment of this sanction affirming the above; Counsels motion to withdraw, Doc. 13, is GRANTED; The hearing on the motion to dismiss and motion to strike, Doc. Nos. 9 and 10, is CONTINUED to 10/13/2009 at 10:00 a.m. Pltf must file and serve an opposition or statement of non-opposition to the pending motion to dismiss and motion to strike no later than 9/28/2009 at 5:00 PM; Dft's reply, if any, must be filed on or before 10/5/2009. (Matson, R)

1 2 3 4 5 6 7 8 9 STEVE AMADEI, 10 NO. CIV. S-09-1370 LKK/EFB 11 12 13 14 15 16 Defendants. 17 / 18 19 20 21 22 23 24 25 26 Plaintiff brings nine causes of action relating to his home loan and defendants' efforts to foreclose on the loan. Pending v. ORDER ETS SERVICES, LLC; WACHOVIA MORTGAGE, FSB, F.K.A. WORLD SAVINGS BANK; WORLD SAVINGS BANK, FSB and DOES 1-50, inclusive, Plaintiff, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

before the court are motions to dismiss and strike the complaint, presently set for hearing on September 28, 2009, and a motion by plaintiff's counsel seeking to withdraw, set for hearing on

September 14, 2009.

For the reasons set forth below, the court

grants the motion to withdraw, and further continues the motions to dismiss and strike. 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 here.

I. BACKGROUND Plaintiff's complaint was filed in state court and removed A motion to dismiss and motion to strike were filed on June Plaintiff failed to

10, 2009, noticed for hearing on August 17.

file an opposition or statement of non-opposition by the August 3 deadline. The court contacted plaintiff's counsel, who indicated On August 7 (four days after the

that he was seeking to withdraw.

opposition would have been due), this court issued an order to show cause as to why sanctions should not issue as a result of this failure, directing plaintiff to respond by August 24. continued the hearings until September 28, and The OSC that

stated

plaintiff's opposition or statement of non-opposition must be filed by September 8. These dates were chosen to allow plaintiff's

counsel time to prepare an opposition, or, in the alternative, for replacement counsel to prepare an opposition. directly responded to the OSC. On August 6, after the OSC was prepared but before it was issued, plaintiff's counsel filed a motion to withdraw, noticed for hearing on September 14. This motion also requested an extension Plaintiff has not

of time for the filing of "responsive pleadings," apparently in reference to the pending motions. Counsel declares that plaintiff

has not paid fees, and that plaintiff has been incarcerated for a matter unrelated to the present case. Counsel further declares

that plaintiff has been given repeated written and telephonic notice of counsel's intent to withdraw. Plaintiff himself has not

filed any sort of declaration, and counsel makes no representation 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

regarding plaintiff's position regarding withdrawal. II. DISCUSSION At the outset, the court notes that plaintiff has not

responded to the OSC.

The motion to withdraw, filed after the

deadline by which plaintiff's opposition or statement of nonopposition was due, does not explain why plaintiff failed to file a timely response. This is especially so in light of the fact that the motions were filed on June 10, 2009 and noticed for hearing on August 17, 2009, granting plaintiff roughly seven weeks notice of the August 3 obligation. Accordingly, the court sanctions

plaintiff's counsel in the amount of $150. III. CONCLUSION For the reasons stated above, the court ORDERS as follows: 1. Counsel for plaintiff is hereby sanctioned and ORDERED to pay One Hundred Fifty Dollars ($150) to the clerk of the court by September 28, 2009, as permitted by Local Rule 11-110. 2. This sanction is to be paid personally by counsel, out of personal funds, and is not and will not be billed, directly or indirectly, to the client or in any way made the

responsibility of the client as attorneys' fees or costs. Counsel shall file an affidavit accompanying the payment of this sanction affirming the above. 3. 4. Counsel's motion to withdraw, Doc. 13, is GRANTED. The hearing on the motion to dismiss and motion to strike, Doc. Nos. 9 and 10, is CONTINUED to October 13, 2009 at 10:00 a.m. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

5.

Plaintiff must file and serve an opposition or statement of non-opposition to the pending motion to dismiss and motion to strike no later than September 28, 2009 at 5:00 PM;

6.

Defendant's reply, if any, must be filed on or before October 5, 2009. IT IS SO ORDERED. DATED: September 3, 2009.

4